In re Aponte
Filed 7/30/12 In re Aponte CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
In re ROBERTO APONTE,
on Habeas
Corpus.
H037509
(Monterey
County
Super. Ct.
No. SS082273)
I. Statement
of the Case
After a
court trial, the court convicted defendant Roberto Aponte of inflicting
corporal injury on his spouse and further found that he personally inflicted
great bodily injury and
had a prior serious felony conviction.
(Pen. Code, §§ 273.5, subd. (a), 12022.7, subd. (e), 1170.12, subd.
(c)(1), 459.)
title="">[1] Under the parties’ negotiated agreement, the
court sentenced him to four years in prison.
It gave him 623 days of presentence custody credit and limited his
presentence conduct credit to 15 percent of custody credit, giving him 93 days,
for total presentence credit of 716 days.
Defendant appealed from the judgment, claiming that counsel rendered
ineffective assistance and that the court erred in applying the 15 percent
credit limitation (H035701). Defendant
reiterated his claim for additional credit in a post-judgment motion for
additional credit, which the court denied.
Defendant also appealed from the denial of that motion (H036822).
In this
petition for a writ of habeas corpus, defendant reiterates the claim of
ineffective assistance raised on appeal from the judgment and adds several more
claims. In particular, defendant
complains that counsel (1) failed to consult a medical expert concerning the
combined effect of drugs and alcohol on memory; (2) failed to inform the court
that the victim had given false testimony; (3) failed to present the
documentation of the victim’s medical history in a coherent way; (4) lost the
chance to use the victim’s medical records to impeach her; (5) failed to ask
the prosecution’s medical expert factually appropriate questions; and (6)
failed to request a limiting instruction concerning the use of hearsay.
We
requested an informal response from the Attorney General. (Cal. Rules of Court, rule 8.385(b) &(c);
see People v. Romero (1994) 8 Cal.4th 728, 741-742.)
We conclude
that defendant fails to make a prima facie showing sufficient to warrant habeas
relief due to ineffective assistance and deny the petition.
II. Background
The Prosecution
Defendant
and his wife Jane Doe went to a barbeque on August 31, 2008, and stayed from
about 1:00 p.m. to 7:30 or 8:00 p.m.
Defendant and Doe were drinkers, sometimes to excess, and both had
numerous drinks at the barbeque.
name="_ftnref3" title="">[3] At the party, Doe observed defendant flirting
with someone. Defendant got angry when a
man named Ricky brought Doe a drink.
Defendant seemed jealous and exchanged words with Ricky, warning him to
stay away from Doe.
Doe
testified that when the party ended, defendant drove them home. They stopped on the way at Burger King for
some food. At home, Doe lay down on the
bed to watch TV. Defendant accused her
of flirting at the party and tried to provoke an argument. Doe was not interested in fighting, curled
up, and continued to watch TV. Defendant
pressed his accusation. Doe told him to
“shut up.” She did not want to talk
about it and said they could discuss it in the morning. Defendant persisted, and Doe just kept
watching TV and dozing a little.
Suddenly, without warning, defendant smacked her in the ear with what
felt like a closed fist and knocked her to the floor. She grabbed her ear in pain and started
screaming. Doe told defendant to get her
car. She then took some of her things
and left for her parents’ house.
Two days
later, Doe complained to the police and filed a formal report seeking
defendant’s arrest. The officer did not
see any exterior bruising but suggested she go to the hospital to have her ear
checked. While Doe was at the police
station, defendant called and left her a voice message apologizing, admitting
that he was “wrong” and had “stepped out of our boundaries,” and wanting her to
know how much he loved her. Doe
testified that defendant’s message echoed the kinds of comments he had made
after prior incidents of violence against her.
After
defendant was arrested, his brother Domingo called Doe and asked her to drop
the charges. Doe also received a card
and love letters. The return address on
an envelope listed the name “Joseph Santos.”
However, the letters were not signed by “Joseph Santos.” Rather, on one side of the card were three
small hearts that sequentially read “I” “Love” and “you” and were followed by a
fourth larger heart that read, “Bobby,” the name she used in referring to
defendant at trial. The card was signed
“Tu Papi.” One letter was signed “Hubby”
and told her to use her maiden name if she wrote him back. Doe identified defendant’s handwriting on the
letters. The card and letters were sent
from the Monterey County Jail, where defendant was being held.
The
handwritten love letters professed defendant’s undying devotion to her and
their marriage. He talked about being
husband and wife and making their marriage stronger; he acknowledged that he
was not the easiest person to get along with; he admitted that he had been
wrong; he said he was sorry and promised this would never happen ever again; he
begged her to forgive him; and he sought reconciliation. He said that only she could pardon him. In addition, he told her that he had accepted
God and Christ into his life, was clean and sober, promised to quit drinking
and go to AA, and was willing to attend marriage counseling. He pointed out that he could go to prison for
eight years but advised her about a “new law” that “if the person doesn’t come
to court it will be thrown out of court,” and therefore “if you don’t come I
can be set free, but I still have too [sic]
do my 6 months for the violations of parole.
I’m asking you please think of My Kids and you and me! I was wrong and I don’t want to loose [
A few days
after being attacked, Doe went to the hospital because she was experiencing
more pain and some hearing loss. She had
not had any problems with her ear before defendant hit her. The treating physician said she had a hole in
her ear. She was referred to Doctor Mark
Vetter, M.D., a specialist. Doe said
that she had been struck on the ear and had some hearing loss. Doctor Vetter found two perforations in her
eardrum. He could not tell whether the
perforations were caused by trauma or infection. However, he saw no signs of infection. He had Doe wait three months to see if her
eardrum would heal naturally. It did
not, and he surgically repaired it and restored her hearing.
Doctor
Vetter testified that it was possible for an old perforation that had healed to
spontaneously reappear. He also
testified that one could perforate an eardrum twice with a Q-tip. However, he considered such a scenario
unlikely because of the pain the first perforation would cause. The more likely cause of multiple
perforations would be an abrupt and traumatic change in pressure inside the ear
due to, for example, being slapped on the ear with an open hand, although it
could also happen with a closed fist.
The Defense
Defendant
testified that he saw Doe take medication on the day of the barbeque. He also said she drank heavily during the
party and was still intoxicated when they got home. She seemed angry at him. They argued, and at one point, she came at
him. He instinctively raised his hands
in self-defense but then backed up, turned around, and left the room. He did not touch her. Defendant admitted that when he explained
what happened to the police, he gave two stories, and in one, he falsely said
that Doe had actually hit him on the head.
Defendant
testified that during their relationship, Doe often complained about pain in
her ear, and when she was drunk, she would dig in her ear with a Q-tip.
III. Ineffective
Assistance of Counsel
A. Applicable Principles
To obtain
reversal due to ineffective assistance, a defendant must first show “that
defense counsel’s performance fell below an objective standard of
reasonableness, i.e., that counsel’s performance did not meet the standard to
be expected of a reasonably competent attorney[.]” (People v. Cunningham (2001) 25
Cal.4th 926, 1003 (Cunningham); Strickland v. Washington (1984)
466 U.S. 668, 688 (Strickland).)
Second, the defendant must show that there is “a
reasonable probability that defendant would have obtained a more favorable
result absent counsel’s shortcomings.” (Cunningham,
supra, 25 Cal.4th at p. 1003.) “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, supra,
466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434,
450-451.)
B. Failure to Consult with a Medical Expert
Defendant
asserts that despite being aware that the combination of alcohol and
prescription drugs Doe consumed may have impaired her memory, defense counsel
failed to consult a medical expert to help develop a defense based on impaired
memory. Defendant claims that counsel’s
omission reflects ineffective assistance because the defense could have
undermined Doe’s testimony about what happened that night. Defendant further claims that counsel had no
legitimate reason not to consult an expert, and counsel’s explanation for not
doing so does not reflect a sound tactical analysis.
In support
of his claim, defendant submits the declaration of Doctor Samuel I. Miles, an
expert in psychiatry, addiction psychiatry, and forensic psychiatry. Given the evidence concerning the amount of
alcohol Doe consumed at the barbeque, the types of medication she had been
prescribed, and her size and weight, Doctor Miles opines that Doe was
intoxicated that evening. He then
explains that alcohol intoxication can impair attention and the ability to
remember, and those symptoms can be enhanced by the types of medication Doe was
taking and that might have been in her system.
He further opines that given the alcohol and possible medications that
Doe consumed, “her ability to accurately perceive events and to recall them
later was impaired.”
In support
of his opinion, Doctor Miles referred to a paper by Aaron M. White, Ph.D.,
entitled “What Happened Alcohol, Memory
Blackouts, and the Brain” in which he discusses at length the specific features
of acute alcohol-induced memory dysfunction, alcohol-induced blackouts, and the
pharmacological mechanisms underlying them.
The article details the physiology and chemistry behind how the brain
stores and retrieves memories and explains how alcohol disrupts the process and
excessive consumption can cause partial and complete blackouts and amnesia.
Defense
counsel refused to sign a proposed declaration admitting that he had no
tactical reason for failing to consult an expert. Rather, he explained that the issue at trial
was how Doe sustained the injuries to her ear—i.e., whether defendant hit
her. Counsel noted that defendant
changed his story to the police and never told them that Doe might have
accidentally injured herself trying to clean her ear with a Q-tip. Counsel further opined that defendant
admitted his guilt in the letters he wrote.
Finally, counsel noted that the court was aware of Doe’s alcohol
consumption and was able to view both defendant and Doe to determine their
credibility. Under the circumstances,
counsel considered an expert unnecessary.
In general,
defense counsel has the obligation to investigate possible defenses or make
reasonable tactical decisions that render such investigation unnecessary. (Strickland, supra, 466 U.S. at pp.
690-691; In re Hill (2011) 198 Cal.App.4th 1008, 1016-1017.)
The
impaired-memory defense now envisioned by defendant would have been based on
Doe’s consumption of both alcohol and prescription medication. However, the evidence that Doe consumed
medication that day was circumstantial and murky at best. Doe denied taking medication that day and
said she does not usually mix alcohol and medication.
Doe had mixed alcohol and her medications on previous occasions; and on that
day he saw her take some unspecified pills from what looked like a medicine
vial. However, he admitted that he did
not look at the vial, know what it contained, or know for a fact that Doe had
taken any medication. There was also no
medical evidence that Doe had traces of medication in her system that day. Doctor Miles said only that some of Doe’s
medications can remain in the body for more than a day and thus could have
exacerbated alcohol-induced memory loss.
In any
event, there was strong evidence that Doe was under the influence of alcohol at
the barbeque. Doe admitted having 10 to
12 drinks including a number of
alcoholic shots. That said, however, we
observe that the proposed impaired-memory defense would, ironically, have been
based on Doe’s unimpaired memory of how much she drank.
that happened after they left the barbeque, things far less memorable than
being punched in the head, and defendant corroborated her. For example, both testified that defendant
drove the car home; on the way, they stopped at Burger King for some food; at
home, there was friction between them, if not argument; and later, Doe told
defendant to go get her car. The
accuracy and reliability of Doe’s memory of these details, which defendant
himself confirmed, would tend undermine the probative value of a defense built
on expert testimony that drinking may cause memory loss. This is especially so in the absence of
undisputed evidence of something that happened after they left that Doe could
not remember.
Furthermore,
we question whether anyone would need an expert to know that the amount of
alcohol Doe admittedly consumed would render a person under the influence and
perhaps impair memory. Indeed, although
the exact physiological process of how the brain remembers things and how
alcohol can interfere with that process are certainly matters beyond the common
knowledge and experience of the average person, we doubt that the average
person, let alone a trial judge, would need expert testimony to know that a
partygoer who drinks excessively over several hours may not later remember, for
example, when, where, or how he or she ended up with a new tattoo.
Finally,
the probative value of an impaired-memory defense developed from Doctor Miles’s
declaration and the article would have been circumscribed by its focus on
memory loss. In a nutshell, Doctor Miles
and the article make the point that drinking affects the brain’s ability to
initially retain and later remember what has just actually happened; and
excessive consumption may cause partial or complete blackouts and memory
loss. Arguably, the defense could have
supported defendant’s claim that after Doe left defendant’s house, she dug
around in her ear with a Q-tip, accidentally punctured her eardrum in two
places, and was so drunk she does not remember injuring herself.
However,
Doe did not testify that she blacked out or could not remember how her ear was
injured, and there is no direct evidence.
Rather, she clearly remembered being hit by defendant, and whether he
did so was the primary disputed issue at trial.
The proposed impaired-memory defense would have had little or no
tendency to rebut what Doe claimed happened because neither Doctor Miles nor
the article suggests that excessive drinking, or even the combination of
excessive drinking and prescription medication, may cause a person to
confabulate or purport to remember events that never took place. Stated differently, nothing in Doctor Miles’s
declaration or the article suggests that the amount of alcohol Doe admittedly
consumed combined with the medication that she might have taken could have
caused her to distinctly remember defendant smacking her hard on the side of
the head and the resulting pain when, in fact, he never touched her.
In sum, the
court was well aware of how much alcohol Doe had consumed that night. Expert testimony to the effect that the
combination of alcohol and prescription medication may cause memory loss would
have merely stated the obvious: people
who drink too much may later not remember what they said and did the next
day. Moreover, the impaired-memory
defense as posited by defendant would not explain how alcohol or a combination
of alcohol and prescription medication might have caused Doe to invent the
memory of being hit and the pain it caused or explain why Doe would accurately
remembered relatively insignificant details of what happened that night but
forget the shocking pain of puncturing her own eardrum twice with a Q-tip.
Under the
circumstances, defendant fails to convince us that it was unreasonable for
counsel to believe that expert testimony was unnecessary or that the failure to
consult with a medical expert like Doctor Miles fell below a standard of
reasonable competence.
For these
and additional reasons, we further conclude that defendant cannot show that the
failure to consult an expert was prejudicial.
Defendant’s credibility was materially impeached when he admitted that
he lied to police about Doe hitting him.
Defendant’s credibility was further undermined when he denied writing
the letters to Doe. His denial was
rendered highly implausible because Doe identified defendant’s handwriting, and
defendant did not suggest who else named “Bobby” might have written love
letters to Doe hoping to save their marriage and sent them from jail at the
same time defendant was there. Moreover,
the apologetic content of the letters mirrored the message defendant left on
Doe’s voice mail. Finally, in admitting
that he had been wrong, profusely apologizing, promising never to do it again,
begging forgiveness, explaining how he had changed, hoping for reconciliation,
and suggesting that she could set him free, defendant’s letters exhibited an
overwhelming consciousness of guilt.
Although he did not expressly apologize for hitting her, his arrest and
incarceration for having done so and the content of the letters render that
conclusion inescapable.
name="_ftnref9" title="">[9]
Under the
circumstances, we do not find a reasonable probability that the court would
have found defendant to be more credible than Doe, would have had a reasonable
doubt concerning whether defendant hit her in the ear, or would have rendered a
more favorable verdict had counsel consulted with a medical expert and
presented an impaired-memory defense based the information in Doctor Miles’s
declaration that the article he cited. (Strickland, supra, 466 U.S. at p. 694; Cunningham, supra, 25 Cal.4th at p. 1003.)
C. Failure to Report Doe’s False Testimony
Defendant
claims counsel was ineffective in failing to inform the court that Doe had
given materially false testimony. He
asserts that Doe’s medical records substantially contradicted a number of
statements she made at trial. In
particular, Doe testified that around the time of the barbeque, she was taking
Cymbalta and Clonopin but did not take them that day. However, the evaluation by a doctor when Doe
went to the hospital days later lists her medications as “Trazadone,
buipropion, clonazepam, Celexa.” Doe
testified that she previously had no problems with her ear. However, in a 1992 medical report, the doctor
observed that Doe’s “[l]eft ear reveals old scarring without obvious fluid,
injection or abnormality.” At trial, Doe
denied ever taking Atenolol or Celectra.
However, medical records reveal that as of July 2008, she had taken
both. Doe could not recall using
Valium. However, medical records
revealed a history of taking Valium. Doe
testified that she drank alcohol regularly, did not “usually” mix alcohol and
medication, and did not do so that day.
She later said she does not mix alcohol and medication. However, medical records revealed that on a
number of occasions she had gone to the hospital after consuming alcohol and
medication.
In all,
defendant argues that defense counsel failed to present this readily available
documentary evidence to the court showing that Doe had testified falsely about
her medications, prior ear problem, and mixing alcohol and prescription
medication, and had he done so, the impeachment would have substantially
undermined Doe’s credibility.
The record
reveals that counsel sought to use Doe’s medical records during
cross-examination to establish that she was taking a number of other
medications; during this period of time, there were previous instances where she
mixed alcohol and prescription medication, and she had had a previous problems
with her left ear. However, for a
variety of reasons, counsel’s efforts to use the records were unsuccessful
because the court repeatedly sustained objections to the questions that counsel
asked Doe.
title="">[10]
We shall
assume that counsel should have been more professionally adroit in employing
Doe’s medical records and could have impeached the accuracy of Doe’s statements
about the medications he took and her statement that she did not take
medication when she drank.
name="_ftnref11" title="">[11]
Doe’s
medical records show that during the time before the barbeque, Doe had been
prescribed, and presumably was taking, more kinds of medication than she
identified at trial. The records also
show that, contrary to her testimony, she had in the past mixed alcohol and
medication. Thus, the records could have
impeached Doe’s statements about her medications and her denial of mixing
alcohol and medication on other occasions.
In our view, however, these were collateral matters that had no strong
or direct probative value concerning whether Doe was drinking while on
medication the day of the barbeque or, more importantly, whether defendant
later hit her in the ear.
Nevertheless,
the impeachment, even on collateral matters, would have been relevant in
assessing Doe’s credibility. On the
other hand, we note that defendant’s credibility was substantially undermined
by evidence that he lied to police about what happened that night; and by his
implausible denial of having written guilt-ridden love letters to Doe that
reiterated the apology in his voice mail to Doe.
Furthermore,
the trial court knew how much Doe drank at the barbeque. The medical records did not establish that
Doe had mixed alcohol and medication that day, and the lost impeachment did not
directly undermine her claim that defendant hit her. Thus, we do not find that Doe’s impeachment
on these collateral matters would have had a substantial or significant impact
on how the trial court viewed Doe’s ability to remember and the reliability of
her memory of what happened after the barbeque.
Again, defendant corroborated aspects of her memory about what they did
after leaving the barbeque.
Under the
circumstances, we do not find a reasonable probability that the impeachment of
Doe’s statements about her medications and history of mixing alcohol and
medication would have so tipped the credibility scales against her as to change
whom the court would have decided to believe or raised a reasonable doubt
concerning whether defendant hit her.
Nor do we find a reasonable probability that such impeachment would have
raised a reasonable doubt concerning whether defendant hit Doe or resulted in a
more favorable verdict.
name="_ftnref12" title="">[12] (Strickland,
supra, 466 U.S. at p. 694; Cunningham, supra, 25
Cal.4th at p. 1003.)
D. Failure to Ask Pertinent Questions
Defendant
complains that defense counsel was ineffective in failing to ask Doctor Vetter
a hypothetical question that could have supported his defense.
The defense
was that at some time after leaving defendant, Doe aggressively cleaned her ear
with a Q-tip and accidentally perforated her eardrum and reopened an old
perforation. And because she was drunk
and medicated, she could not remember having done this. Doctor Vetter testified that an old eardrum
perforation could spontaneously reappear.
He also testified that a person could accidentally puncture an eardrum
with a Q-tip. When counsel asked about
the two perforations in Doe’s ear, Doctor Vetter opined, in essence, that it
was unlikely a person would accidentally perforate an eardrum twice with a
Q-tip because the pain of the first perforation would cause a person to stop.
Defendant
faults counsel for not immediately following up Doctor Vetter’s response by
asking him whether a person who is intoxicated by alcohol and prescription
medication would be more likely than a sober person to puncture his or her own
eardrum twice by aggressive use of a Q-tip.
In support of this claim, defendant cites a web site for the Center for
Alcohol & Other Drug Education at George Washington University which
contains a list of short-term effects that can be caused by moderate to heavy
consumption of alcohol, and the list includes the inability to feel pain.
We conclude
that counsel cannot be faulted for failing to ask this question. There is no evidence that Doctor Vetter, like
Doctor Miles, was qualified to testify concerning the effects of alcohol and
medication on a person in general, how much alcohol one must consume before
intoxication can mask pain, or how much pain excessive alcohol can mask. Thus, it is speculation to assume, as
defendant implies, that Doctor Vetter would have said that an intoxicated
person would be more likely than a sober person to puncture an eardrum twice
because the alcohol could mask the pain of the first puncture. Moreover, the information on defendant’s web
site does not suggest how much pain alcohol consumption can mask or whether
alcohol can ever mask the pain associated with puncturing an eardrum.
Counsel
also cannot be faulted for the opposite reason.
Although the fact that alcohol can mask pain may be beyond the knowledge
of the average person, the average person would not need an expert opinion to
know that as between a drunk, drug-abusing person and a sober person, the
former would be more likely than the latter to injure an eardrum twice while
aggressively cleaning it with a Q-tip.
In other words, the answer that defendant would have wanted counsel to
elicit from Doctor Vetter is, in a sense, obvious and would have been so to the
court.
Finally,
Doctor Vetter did not say that it was impossible for a Q-tip to cause the two
perforations in Doe’s ear; just than it was unlikely due to the pain that one
puncture would cause. In closing
argument, counsel noted the possibility acknowledged by Doctor Vetter and
argued that Doe did puncture her eardrum because she was so highly
intoxicated. On the other hand, there
was no direct evidence that Doe cleaned her ears after leaving defendant’s
house. Indeed, the whole defense rested
on defendant’s credibility and testimony that in the past he had seen Doe clean
her ears when drunk. Even then, however,
he did not suggest that she had ever injured herself. Moreover, although Doctor Vetter acknowledged
the possibility of a self-inflicted pair of perforations, he found the more
likely cause of such injuries to be a traumatic change of pressure on the
eardrum resulting from being hit in the ear.
Under the
circumstance, we do not find that counsel’s failure to ask Doctor Vetter a
follow-up hypothetical question was an omission that fell below a standard of
reasonable competence. Nor do we find a
reasonable probability that the court would have been more inclined to accept
the theory of the defense had counsel asked the question. (Strickland,
supra, 466 U.S. at p. 694; Cunningham, supra, 25
Cal.4th at p. 1003.)
E. Failure to Request a Limiting Instruction
Defendant
claims that counsel rendered ineffective assistance in failing to request an
instruction limiting the purpose for which the court could evidence that
Domingo urged Doe to drop the charges against defendant.
We note
that when the prosecutor sought to elicit from Doe what Domingo had said to her
on the phone, defense counsel raised a hearsay objection. The prosecutor noted that Domingo was listed
as a witness, and therefore the evidence was relevant to show his motive and
bias. The court suggested receiving the
evidence subject to a motion to strike, opining that “if that witness doesn’t
testify or there’s no basis to have it introduced by virtue of that witness’s
testimony, that would avoid having to recall [Doe] again to, you know,
introduce that.” Counsel agreed to the
court’s suggestion, and the court allowed the testimony subject to a
to strike Doe’s testimony.
Defendant
concedes that the evidence was admissible for some purposes—for example, to
explain Doe’s state of mind and credibility in that it could show that she was
afraid to testify and feared retaliation and to show Domingo’s bias as a
witness for the defense. However, he
notes that there was no evidence that defendant authorized, directed, or was otherwise
connected with Domingo’s call. Thus,
defendant argues that the evidence was not admissible to prove that
dissuade Doe from testifying or sought to suppress evidence. Accordingly, he argues that counsel should
have requested a limiting instruction to put the court on notice that the
evidence was not admissible to prove wrongdoing on defendant’s part.
Defendant
is correct that there was no evidence that defendant authorized, directed, or
was connected to his call in any way or even knew that Domingo intended to and
did call Doe and urge her to drop the charges.
Nothing Domingo said implied otherwise.
Nor did the prosecutor say anything to suggest such a connection. In the absence of such evidence, however,
counsel had no reason to request an instruction to prevent the court from
tacitly imputing Domingo’s conduct defendant.
(E.g., People v. Gray (2005) 37 Cal.4th 168, 220 [absent evidence
defendant knew that family had called witness, no reason to request limiting
instruction].) Indeed, it is clear from
the record that the court understood that the evidence was admissible to show
Domingo’s bias.
Under the
circumstances, the failure to request an instruction warning the court not to
consider the evidence for a purpose that it was not offered for and for which
there was factual support was not an omission reflecting representation below
the standard of reasonable competence.
Moreover,
even assuming for purposes of argument that counsel should have requested a
limiting instruction, defendant cannot show prejudice from the omission.
“ ‘As
an aspect of the presumption that judicial duty is properly performed
[Evid.Code, § 664], we presume, nonetheless, in other proceedings that the
court knows and applies the correct statutory and case law [citation] and is
able to distinguish admissible from inadmissible evidence, relevant from
irrelevant facts, and to recognize those facts which properly may be considered
in the judicial decisionmaking process.’
[Citation.] Stated another way, a
trial court is presumed to ignore material it knows is incompetent, irrelevant,
or inadmissible. [Citations.]” (In re Marriage of Davenport (2011)
194 Cal.App.4th 1507, 1526.) “These
presumptions are based on the difference between lay jurors and judges:
‘ “The juror does not possess that trained and disciplined mind which
enables him . . . to discriminate between that which he is
permitted to consider and that which he is not.
Because of this lack of training, he is unable to draw conclusions
entirely uninfluenced by the irrelevant prejudicial matters within his
knowledge.” ’ [Citations.] Only proof that the evidence actually figured
in the court's decision will overcome these presumptions. [Citations.]
Clearly, the mere fact that the court heard or read the evidence is not
sufficient to overcome the presumptions.
[Citations.]” (Ibid.)
Because
there was no evidence connecting defendant to Domingo’s call, it would have
been improper for the court to consider the call against defendant. No one suggested such a connection at
trial. The call was admissible for a
number of relevant purposes. And the
record does not suggest that the court considered the call against defendant or
that an improper consideration of the evidence figured into the court’s
determination. Under the circumstances,
we presume that the court considered the evidence for a proper purpose. Moreover, it was wholly unnecessary for the
court consider Domingo’s call against defendant because defendant’s own letters
urged Doe not to come to court. Accordingly,
we do not find a reasonable probability that defendant would have obtained a
more favorable result had counsel requested a limiting instruction. (Strickland,
supra, 466 U.S. at p. 694; Cunningham, supra, 25
Cal.4th at p. 1003.)
F. Cumulative Prejudice
Defendant
claims that even if no one of counsel’s omissions was sufficiently prejudicial
to compel reversal, the cumulative effect of all of them was that prejudicial.
As our
discussion reveals, the only conduct which, in our view, arguably fell below a
standard of reasonable competence involved counsel’s handling of Doe’s medical
records: failing to inform the court he
had evidence to show that Doe’s testimony that she was only taking a couple of
prescription medications and did not mix alcohol and her medication was false;
failing to organize the medical record for the court in an orderly and coherent
way; and failing to use the documents effectively to impeach Doe’s
statements. However, the potential prejudice
from these alleged failings was the same whether they are considered
individually or collectively. In other
words, the cumulative prejudice is no greater than the prejudice from any one
of these failings, namely, the loss of Doe’s impeachment and the influence such
impeachment could have had on the court’s determination of credibility and
guilt. We have previously found no
reasonable probability that defendant would have obtained a more favorable
result had Doe’s statements been impeached.
The claim of cumulative prejudice does not change our analysis or
finding.
IV. Disposition
Defendant
has failed to make a prima facie showing that he is entitled to habeas relief
due to ineffective assistance of counsel.
Accordingly, we deny the petition.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
ELIA, J.
___________________________________
WALSH, J.
charged with knowingly violating a protective order. (Pen. Code, § 166, subd. (c)(1).) The two cases were consolidated, and after
trial, the court acquitted defendant of that charge.
All unspecified statutory references are to the Penal
Code.
the judgment on appeal; in a separate order, we dismiss the appeal in H036822
as moot.
